Ceccarelli v Red Carpet Creations Pty Ltd etc: Employers Warned They Cannot Fire Employee for Simply Being Late

In Filomena Ceccarelli v Red Carpet Creations Pty Ltd T/A Red Pearl Couture [2013] FWC 1869 a decdision handed down in the Fair Work Commission by Senior Deputy President O'Callaghan on 27 March 2013, employers have been warned that they cannot simply fire an employee for being late and that such amounts to unfair dismissal which entitles a worker to compensation.

Background to the decision

Filomena Ceccarelli (the applicant) was dismissed from wedding gown retailer Red Pearl Couture and the reason given for her dismissal was "excessive lateness and inappropriate behaviour".

The Commission heard that the applicant, who worked as a machinist on a casual basis, was late on five occasions within two months when she failed to attend work and open the store by 9 am in the morning. Further, the Commission heard the manager of Red Perl gave the applicant "warnings" which were better described as "comments". The Commission thus also found there were no warnings about any "consequences of repetition" should the applicant appear late again.

The Result

Because Red Pearl employed fewer than 15 employees and was a small business the Commission found that the Small Business Fair Dismissal Code (the Code established under the Fair Work Act 2009 s 388) was applicable and "required consideration" in the case. 

O'Callaghan on considering the Code stated: "I have initially considered whether the termination of the applicants’s employment was consistent with that Code" and found that it was. However, O'Callaghan went on to say that despite the applicant's "continued failure to ensure that she attended work on time", such wasn't enough to "justify immediate dismissal".

The Commission further found that because a notice for dismissal was in fact issued a week after the last actual occasion of lateness the case was not accurately descibed as one of instant dissmisal. O'Callaghan saying:

"I do not consider instant dismissal ... over a matter unrelated to timekeeping could be sustained on the basis of earlier timekeeping concerns".

Commentary on the Case

SmartCompany in its report of the case quotes M+K Lawyers principal Andrew Douglas:

"this is an issue businesses need to be clear about, as excessive lateness can be categorised as a serious issue but only when it has been clarified correctly ... Instant dismissal arises where there has been serious misconduct ... there needs to have been a pattern of behaviour, and the business needs to have clearly outlined warnings around these instances. Only then, ... can a termination occur. It just can't be immediate".

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